Fifth Circuit Jumps on the Marbury-gate Bandwagon

The fallout continues from President Obama's unfortunate comment that it would be "unprecedented" for the Supreme Court to overturn a law "passed by a strong majority of a democratically elected Congress."  Like Howard, I believe that the ACA is constitutional, but that the Supreme Court has the power to strike down unconstitutional laws.

He has been skewered in the media for presenting a mistaken view of the role of judicial review, and right-leaning commentators in particular have not missed a single opportunity to remind the public that Obama once taught Constitutional Law.  Never mind that politicians across the political spectrum have complained about this sort of "judicial activism" for years when a court strikes down a democratically elected law that the politician at hand favors.  Regardless of this fact, since Obama did indeed misstate the law, he was right to issue a clarification and retraction.

Now enter the Fifth Circuit, which is hearing oral arguments on a separate ACA challenge brought by physician owned hospitals.  Yesterday, Judge Jerry Smith engaged in the following exchange with the DOJ lawyer:

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes. 

Judge Smith then referred to Obama's comments, remarking "So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases."

After Kaervsang cited Marbury v. Madison, Judge Smith demanded further briefing on the topic, asking for a three-page single-spaced letter stating "the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review."

I must say that as troubled (and annoyed) as I was by Obama's comments on Monday, I was shocked by this exchange.  It raises several difficult issues of judicial behavior and appellate litigation.

First, Obama's remarks were not part of the record before the court.  Judge Smith's request dips into the murky area of what sources of authority judges may consult when reviewing the facts of a case or deciding on the law.  While it is not impossible (or, should I say, unprecedented) for judges to take judicial notice of facts outside of a formal record, this power is usually exercised in a very narrow and tailored fashion.  I am particularly worried about statements made by lawmakers commenting on legislation.  Politicians, who engage in a good deal of high rhetoric and puffery, should not have to be concerned that every last statement they make will be come part of the record of litigation and subject to extra briefing and defense.  The President is perfectly capable of directing the DOJ to change the government's positions on various statutes (see DOMA).  This sort of judicial behavior chills a politician's ability to engage in a public discussion of various policy decisions without fearing that every statement now becomes official administration policy for purposes of litigation.

Second, the exchange calls into question Judge Smith's impartiality in this matter.  Because while President Obama--a member of a political branch of government--has the right and perhaps sometimes the obligation to take partisan stances on issues, Judge Smith is a member of the judiciary who should theoretically be above the fray.  

Most commentators who were not motivated by political leanings understood the Obama gaffe to be either: (a) a very poor misstatement in which he meant to defend the constitutionality of the ACA, but made the unfortunate mistake of questioning judicial review; or (b) campaign-year puffery.  Either way, Obama has since assured us that judicial review is not actually under attack.  No serious commentator took Obama's statement to signal a change in the adminstration's view of judicial review, any more than numerous other comments by other presidents and politicians over the years have been taken as a serious statement of operational policy.

What then, motivated Judge Smith to demand extra briefing on a point with which the DOJ lawyer agreed?  In my opinion, it was motivated by a desire to humiliate and punish Obama and the administration.  While the actual request is not a technical breach of judicial ethics, it toes the line and reveals a willingness to engage politically with a litigant (and another branch of government, no less) instead of limiting review to the merits of the law and the content of the record.  

Therefore, I don't think it's a stretch to question Judge Smith's impartiality in this case, even if it does not rise to the level of recusal.  His specific animus toward a litigant is troubling, and I hope that this issue receives the attention it deserves.